CRIMINAL
JUSTICE (ANONYMITY IN SEXUAL OFFENCE CASES) (JERSEY)
LAW 2002
____________
A LAW to repeal and re-enact the provisions of
the Criminal Justice (Anonymity in Rape Cases) (Jersey)
Law 1992 and to make new provision for the anonymity of victims of sexual
offences other than rape; sanctioned by Order of Her Majesty in Council of the
26th
day of MARCH 2002
____________
(Registered
on the 12th day of April 2002)
____________
STATES
OF JERSEY
____________
The 20th day of November 2001
____________
THE STATES, subject to the sanction of Her
Most Excellent Majesty in Council, have adopted the following Law -
ARTICLE 1
Interpretation
(1) In this Law, unless the context otherwise
requires -
“complainant” means a
person against whom a sexual offence is alleged to have been committed;
“picture” includes a
likeness, howsoever produced;
“publication” includes
any speech, writing, relevant programme or other communication in whatever
form, which is addressed to the public at large or any section of the public
(and for this purpose every relevant programme shall be taken to be so addressed)
but shall not include an indictment or other document prepared for use in
particular legal proceedings;
“relevant programme”
means a programme included in a programme service, within the meaning of the
Broadcasting Act 1990 as that Act from time to time has effect in the Island by
virtue of any Order in Council;
“sexual offence” shall
be construed in accordance with Article 2.
(2) For the purposes of this Law -
(a) where it is alleged that a sexual offence has been committed,
the fact that any person has consented to an act which, on any prosecution for
that offence, would fall to be proved by the prosecution, shall not prevent
that person from being regarded as a person against whom the alleged offence
was committed; and
(b) where a person is accused of an offence of incest or sodomy, the
other party to the act in question shall be taken to be a person against whom
the offence was committed even though he consented to that act.
(3) For the purposes of this Law, where it is
alleged or there is an accusation -
(a) that an offence of conspiracy or incitement of another to commit
an offence mentioned in Article 2(a) to (g) has been committed; or
(b) that an offence of aiding, abetting, counselling or procuring
the commission of an offence of incitement of another to commit an offence
mentioned in Article 2(a) to (g) has been committed,
the person against whom the
substantive offence is alleged to have been intended to be committed shall be
regarded as the person against whom the conspiracy or incitement is alleged to
have been committed.
(4) In paragraph (3), “the substantive offence”
means the offence to which the alleged conspiracy or incitement related.
(5) For the purposes of this Law, a person is
accused of an offence if -
(a) he is presented before the Magistrate’s Court by the Connétable
of the parish where the offence is presumed to have been committed; or
(b) he is brought before or committed for trial before the Royal Court on a
charge for the offence,
and references in this Law to an
accusation alleging an offence shall be construed accordingly.
(6) A reference in this Law to an Article by
number only and without further identification is a reference to the Article of
that number in this Law.
(7) A reference in an Article or other division
of this Law to a paragraph, sub-paragraph or clause by number or letter only
and without further identification is a reference to the paragraph,
sub-paragraph or clause of that number or letter in the Article or other
division of this Law.
(8) Unless the context otherwise requires, a
reference in this Law to an enactment is a reference to that enactment as
amended from time to time and includes a reference to that enactment as
extended or applied under another enactment, including another provision of
this Law.
ARTICLE
2
Sexual offences
For the purposes of this Law,
“sexual offence” means any of the following -
(a) rape;
(b) incest;
(c) sodomy;
(d) indecent assault;
(e) gross indecency;
(f) any offence under the Loi (1895) modifiant le droit criminel, other than an offence under
Article 9;
(g) any offence under Article 45 of the Mental Health (Jersey) Law 1969;
(h) any offence of attempt to commit any of the offences in
paragraphs (a) to (g);
(j) any offence of conspiracy or incitement to commit any of the
offences in paragraphs (a) to (g);
(k) any offence of aiding, abetting, counselling or procuring any of
the offences in paragraphs (a) to (j).
ARTICLE 3
Anonymity
of victim of sexual offence
(1) Where an allegation has been made that a sexual offence has been
committed against a person, no matter relating to that person shall during that
person’s lifetime be included in any publication if it is likely to lead
members of the public to identify that person as the complainant.
(2) Where a person is accused of a sexual
offence, no matter likely to lead members of the public to identify a person as
the complainant shall, during the complainant’s lifetime be included in any
publication.
(3) This Article -
(a) shall not apply in relation to a person by virtue of paragraph
(1) at any time after a person has been accused of the offence; and
(b) in its application in relation to a person by virtue of
paragraph (2), has effect subject to any direction given under Article 4.
(4) The matters relating to a person in
relation to which the restrictions imposed by paragraph (1) or (2) apply (if
their inclusion in any publication is likely to have the result mentioned in
that paragraph) include in particular -
(a) the person’s name;
(b) the person’s address;
(c) the identity of any school or other educational establishment
attended by the person;
(d) the identity of any place of work of the person; and
(e) any still or moving picture of the person.
(5) Nothing in this Article prohibits the
inclusion in a publication of matter consisting only of a report of criminal
proceedings other than proceedings at, or intended to lead to, or an appeal
arising out of, a trial at which the accused is charged with a sexual offence
ARTICLE 4
Direction
disapplying Article 3
(1) If, before the commencement of a trial at
which a person is charged with a sexual offence, he or another person against
whom the complainant may be expected to give evidence at the trial applies to
the Royal Court for a direction under this paragraph and satisfies the Royal
Court -
(a) that the direction is required for the purpose of inducing
persons to come forward who are likely to be needed as witnesses at the trial;
and
(b) that the conduct of the applicant’s defence at the trial is
likely to be substantially prejudiced if the direction is not given,
the Royal Court shall direct that Article 3
shall not, by virtue of the accusation alleging the said offence, apply in
relation to the complainant.
(2) If, at a trial, the Royal Court is
satisfied that the effect of Article 3 is to impose a substantial and
unreasonable restriction upon the reporting of proceedings at the trial and
that it is in the public interest to remove or relax the restriction, it shall
direct that Article 3 shall not apply to such matter as is specified in the
direction.
(3) A direction shall not be given under
paragraph (2) by reason only of the outcome of the trial.
(4) If a person who has been convicted of a
sexual offence and has given notice of appeal against the conviction, or notice
of an application for leave so to appeal, applies to the court to which the
appeal is or would be made for a direction under this paragraph and satisfies
that court -
(a) that the direction is required for the purpose of obtaining
evidence in support of the appeal; and
(b) that the applicant is likely to suffer substantial injustice if
the direction is not given,
that court shall direct that
Article 3 shall not, by virtue of an accusation which alleges a sexual offence
and is specified in the direction, apply in relation to a complainant so
specified.
(5) A direction given under this Article shall
not affect the operation of Article 3 at any time before the direction is
given.
(6) If, after the commencement of a trial at
which a person is charged with a sexual offence, a new trial of the person for
the offence in question is ordered, the commencement of any previous trial
shall be disregarded for the purposes of paragraph (1).
ARTICLE 5
Special
rules for cases of incest or sodomy
(1) Article 3 shall not apply to a person
against whom incest is alleged to have been committed if that person is accused
of having committed incest against the other person who is alleged to have
committed incest against him.
(2) Article 3 shall not apply to a person
against whom sodomy is alleged to have been committed if that person is accused
of having committed sodomy against the other person who is alleged to have
committed sodomy against him.
(3) Paragraph (1) or (2) shall not affect the
operation of this Law in relation to anything done at any time before the
person mentioned first in that paragraph is accused.
(4) In this Article, a reference to incest
includes an attempt to commit that offence and a reference to sodomy includes
an attempt to commit that offence.
ARTICLE 6
Offences
(1) If any matter is included in a publication
in contravention of Article 3, the following persons shall be guilty of an
offence and liable to a fine -
(a) where the publication is a newspaper or periodical, any
proprietor, any editor and any publisher of the newspaper or periodical;
(b) where the publication is a relevant programme -
(i) any body corporate or limited liability partnership
engaged in providing the programme service in which the programme is included,
and
(ii) any person having functions in relation to
the programme corresponding to those of an editor of a newspaper;
(c) in the case of any other publication, any person publishing it.
(2) Where a person is charged with an offence
under this Article in respect of the inclusion of any matter in a publication,
it shall be a defence, subject to paragraph (3), to prove that the publication
in which the matter appeared was one in respect of which the person against
whom the sexual offence is alleged to have been committed had given written
consent to the appearance of matter of that description.
(3) Written consent is not a defence if it is
proved that any person interfered unreasonably with the peace or comfort of the
person giving the consent, with intent to obtain consent or that the person was
under the age of 16 at the time when it was given.
(4) Where a person is charged with an offence
under this Article, it shall be a defence to prove that, at the time of the
alleged offence, he was not aware and neither suspected nor had reason to
suspect, that the publication included the matter in question.
(5) Where -
(a) a person is charged with an offence under this
Article; and
(b) the offence relates to the inclusion of any matter in a
publication in contravention of Article 3(1),
it shall be a defence to prove
that at the time of the alleged offence he was not aware, and neither suspected
nor had reason to suspect, that the allegation in question had been made.
(6) Proceedings for an offence under this
Article shall not be instituted except by or with the consent of the Attorney
General.
ARTICLE 7
Offences
by bodies corporate, etc.
(1) Where an offence under Article 6 committed
by a limited liability partnership or company is proved to have been committed
with the consent or connivance of, or to be attributable to any neglect on the
part of -
(a) a person who is a partner of the partnership, or director,
manager, secretary or other similar officer of the company; or
(b) any person purporting to act in any such
capacity,
the person shall also be guilty
of the offence and liable in the same manner as the partnership or company to
the penalty provided for that offence.
(2) Where the affairs of a body corporate are
managed by its members, paragraph (1) shall apply in relation to the acts and
defaults of a member in connection with his functions of management as if he
were a director of the body corporate.
ARTICLE 8
Prohibitions,
etc. in other enactments
Nothing
in this Law shall affect any prohibition or restriction imposed by virtue of
any other enactment upon a publication or upon matter included in a relevant
programme.
ARTICLE 9
Courts-martial
(1) This Law shall have effect with the
modifications set out in paragraph (2) in any case where, in pursuance of any
provision of the Army Act 1955, the Air Force Act 1955 or the Naval Discipline
Act 1957, as those Acts from time to time have effect in the Island by virtue
of any Order in Council, a person is charged with a sexual offence.
(2) The modifications are -
(a) any reference to a trial shall be read as a reference to a trial
by court-martial;
(b) in Article 1(5), for sub-paragraphs (a) and (b) there shall be
substituted the words “he is charged, in pursuance of any provision of the Army
Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957, as those
Acts from time to time have effect in the Island by virtue of any Order in Council,
with a sexual offence”;
(c) in Article 4(1), any reference to the Royal Court, in relation
to the person charged with a sexual offence, shall be read as a reference to
the judge advocate appointed to conduct proceedings under that paragraph
relating to the offence, whether or not he is also appointed to conduct other
preliminary proceedings relating to the offence; and
(d) in Article 4(2), any reference to the Royal Court shall be read as a reference
to the judge advocate appointed to be a member of the court-martial.
(3) Where any provision of an Act referred to
in this Article is repealed and re-enacted, with or without modifications, by a
provision of another Act having effect in the Island, references in this
Article, and in the modifications made by it, to the provision so repealed and
re-enacted shall be construed as
references to the provision so re-enacted, as it has effect in the Island.
ARTICLE 10
Regulations
The
States may by Regulations amend the definitions “publication” and “relevant
programme” in Article 1(1).
ARTICLE
11
Repeal
The Criminal Justice (Anonymity
in Rape Cases) (Jersey) Law 1992 shall be repealed.
ARTICLE
12
Citation and commencement
This Law may be cited as the
Criminal Justice (Anonymity in Sexual Offence Cases) (Jersey)
Law 2002 and shall come into force on the seventh day after it is registered.
M.N.
DE LA HAYE
Deputy Greffier of the States.